IN THE MATTER OF THE ONTARIO HUMAN RIGHTS
CODE R.S.O. 1970, CHAPTER 318, AS AMENDED
AND IN THE MATTER OF the complaints made by
Mr. Randolph Skeete and Mrs. May Samuel, of
Toronto, Ontario, alleging discrimination
in employment by Jolyn Jewellery Limited,
100 Wildcat Road, Downsview, Ontario, and by
Mrs. Barbara Bather son, c/o Jolyn Jewellery
Board of Inquiry
Mr. Sydney L. Goldenberg
Counsel for the Ontario
Human Rights Commission
and the Complainants, Mr.
Randolph Skeete and Mrs.
Mr. John Weingust
Counsel for Jolyn Jewellery
Limited and Mrs. Barbara
This enquiry is concerned with the complaints of
Mr. Randolph Skeete and Mrs. May Samuel against Jolyn
Jewellery Limited, and of Mr. Skeete against Mrs. Barbara
Batherson, comptroller of Jolyn Jewellery Limited, alleging
that the company discriminated against them, and Mrs.
Batherson discriminated against Mr. Skeete in violation of
section 4, subsection 1(b) and (g) of the Ontario Human Rights
Code, R.S.O. 1970, c. 318 as amended, by mistreating and
eventually dismissing them from employment because of their
race, colour or place of origin.
The facts concerning the two complaints are closely
related, but Mrs. Samuel's employment ended ten days after Mr.
Skeete 1 s. I shall set out the facts in Mr. Skeete ' s complaint
first, and refer to them while adding the extra facts relating
solely to the complaint of Mrs. Samuel afterwards.
At the outset, it should be noted that the facts in
question took place over a period from February 1976 to May
1978, some 28 months, ending about 17 months before the hearing
was held. As a result many witnesses had to rely on their
recollection of distant events, with little or no written
evidence to refresh their memories. I found the witnesses
co-operative and sincere, doing their best to recall exactly
what had occurred. Nevertheless, there were wide divergences
among them in their recollection of certain important events,
requiring me to make findings of fact that necessarily
contradict the testimony of certain persons while agreeing
substantially with others. These findings should not be
construed as in any way questioning the integrity of those
witnesses whose version of events has been rejected. Rather
it demonstrates, if further demonstration be needed, the
fallibility of human memory after such a lengthy passage of
THE FACTS IN MR. SKEETE ' S COMPLAINT
Mr. Skeete is a Canadian citizen, aged 35, married
with three children. He was born and educated in Guyana
where he received training in electrical and mechanical
maintenance, and in telephone installation and repairs. After
receiving a certificate and working for the Telephone Company
of Guyana, he moved to the United States. He worked for two
years in Hartford, Connecticut as a technician and undertook
further studies there in air conditioning and refrigeration.
He came to Canada in 1972 and received training in computer
operations and programming at the Control Data Institute in
Willowdale, Ontario. Subsequently, he worked for three years
at the Canadian National Institute for the Blind in Toronto
as a computer operator on a Honeywell 58, LOSS-2 computer,
physically the same machine as that at Jolyn Jewellery. He
then worked for about three months at the Canadian Imperial
Bank of Commerce in Toronto.
Some time in February 1976, while working at the
bank, Mr. Skeete answered a newspaper ad for an experienced
Honeywell 58 Computer operator. The ad had been placed in
the newspaper by Mr. Lawrie Reis, carrying on business as a
computer consultant under the name of Systems Design Group.
At the time Mr. Reis was advising Jolyn Jewellery in its
computer operations. Mr. Skeete was interviewed by Mr.
Reis, who was sufficiently satisfied with his qualifications
and knowledge of the computer to introduce him to Mr. Joe
Eisen, President of Jolyn Jewellery.
At that time the manufacturing business of Jolyn was
expanding rapidly. The company had outgrown its simpler system
of accounting and inventory control, and on the advice of Mr.
Reis had acquired a Honeywell 58 Computer. Apparently, the
problems in adapting its former system to a new computerized
system turned out to be much more severe than the company had
anticipated. It desperately needed employees experienced in
computing, and it was for this reason Mr. Reis had advertised.
Mr. Eisen persuaded Mr. Skeete to start work part-
time on a temporary basis almost at once. After three weeks
Mr. Skeete was invited by Mr. Eisen to join Jolyn as a regular
full-time employee. At that time Mr. Eisen explained that
Jolyn did not pay overtime to its office staff, although they
were expected to work overtime on some occasions. Instead,
Jolyn would pay an end-of-year bonus to employees, based on
their extra efforts and performance during the year. Thus, in
March 1976, Mr. Skeete joined Jolyn as supervisor of computer
operations. Mr. Skeete was responsible directly to Mr. Eisen.
There seems to be general agreement in the testimony
of all the witnesses that Jolyn' s business continued to grow,
that the business needed an efficient computer operation for
its accounting, billing and inventory control and that the
computing system continued to cause problems and stress in the
office during the first year of Mr. Skeete's employment .
However, there is no evidence that during the remainder of
1976 the company's officers complained about, or were
dissatisfied with Mr. Skeete's performance. In fact, in
early December Mr. Eisen provided Mr. Skeete with a very
favourable letter of reference to enable Mr. Skeete to make
a bank loan.
At the end of the year, Mr. Skeete received a bonus
of $1,000, a sum which he considered inadequate in view of
the extra time and effort he believed he had put into his job.
He told Mr. Eisen that he was dissatisfied, but was informed
that the company was "going through a critical time" and that
he would do better the following year. There is a substantial
difference of opinion about the amount of overtime worked by
Mr. Skeete, he claiming to have worked many extra hours
including week-ends, and witnesses for Jolyn claiming that
overtime work occurred only occasionally.
Mr. Skeete gave evidence about an incident that
occurred either late in 1976 or early in 1977, and that seemed
to create in Mr. Skeete's mind a belief that Mrs. Barbara
Batherson, then working in the collection of accounts receivable
department, had exhibited prejudice against black people.
According to Mr. Skeete, a black employee, Glenda Lewis reported
to him in the presence of Mrs. Samuel, the other complainant,
that, "During the course of a conversation with Mrs. Batherson,
Mrs. Batherson told her that when she gets into power she is
going to get rid of all the blacks in the office".
Mrs. Samuel's version was somewhat different. She
stated, " [Glenda Lewis] ... said 'I don't think Barbara
likes blacks', or something like that, because she is
planning to get rid of all of us. Something like that. I
cannot remember the exact words." Thus Mrs. Samuel did not
allege, even indirectly through Miss Lewis, that Mrs.
Batherson referred expressly to black people.
Mr. Skeete stated that he heard corroboration of
Miss Lewis's allegation from Mrs. Sophie Konjevic, but he
did not attempt to quote her words. However, Mrs. Samuel did
comment on Mrs. Konjevic *s statement. Mrs. Samuel stated,
"I thought it was a joke because she [Mrs. Konjevic] is always
joking. Sophie said that. 'My friend says when she gets in
power, she's going to get rid of all of you', and 'all of you'.
It was just Randy [Skeete] and myself in the room. She didn't
say black or white or what, she said all of you, but she
couldn't be speaking to the wall, because there were only two
people there, which was Randy and myself." Mrs. Samuel
repeated several times that she thought it was a joke, a big
Miss Lewis did not appear as a witness but Mrs.
Konjevic did give evidence. Although she appeared as a
complainant's witness, counsel questioned her very closely as
if he were cross-examining her. She denied ever hearing Mrs.
Batherson making any statement similar to that reported by
Mr. Skeete or Mrs. Samuel. She further denied making any
comment jokingly or otherwise about the subject because she
did not think it "funny in the least". Mrs. Batherson, in
her own testimony, vigorously denied ever making the alleged
The incident occurred about three years before the
hearing and there is a direct conflict of testimony. Miss
Lewis, who is alleged to have made the most explicit
statement was not before us. We are here dealing with
hearsay through an intermediary who has not appeared before
us. In these circumstances I do not give any credence to
Mrs. Batherson's actually have made the alleged statement.
However, it does seem that Mr. Skeete honestly believed
that Mrs. Batherson made such a statement. Thus, Mr. Skeete
at an early stage in his relations with Mrs. Batherson became
suspicious, if not convinced, that Mrs. Batherson harboured
a prejudice against black people.
Early in 1977, Mr. Skeete said he was very tired
from working under heavy pressure and requested two weeks'
vacation with pay. Ordinarily all employees received two
weeks' vacation with pay only when the plant closed in June for
a two-week period. Therefore, Mr. Skeete 's special request was
for an additional two weeks. Mr. Eisen agreed to the request,
but a few days before Mr. Skeete was to leave, Mr. Eisen appears
to have changed his mind and informed Mr. Skeete that he would
not be paid during the time off, because of a report received
from Mrs. Batherson. Mr. Skeete was not told what the report
According to Mr. Skeete, computer operations were
improving and were going quite well in the spring of 1977, but
there were still serious problems in developing programming
for the system, and in generating certain statements and reports
which the firm required. There was friction between Mr.
Skeete and Mr. Reis because Mr. Reis kept demanding computer
time to work on programs during the day when Mr. Skeete was
busy with his day's tasks. Mr. Eisen's testimony confirms
that this problem caused continuing friction.
In May 1977, Mrs. Batherson claimed that Mr. Skeete
had made a fairly serious error with respect to charging taxes
on an assortment of goods. As a result the government appeared
to have been overpaid. Mr. Skeete denied that he was
responsibile for the mistake, and in a meeting with the vice-
president, Mr. Goldfarb, and Mrs. Batherson the following day,
it seems that Mr. Skeete was vindicated; Mr. Goldfarb stated
that he did not think Mr. Skeete was to blame. According to
Mr. Skeete, Mrs. Batherson became very angry and "stormed out
of the room and slammed the door".
Within a few days, Mr. Eisen telephoned Mr. Skeete
and requested that the two of them meet with Mrs. Batherson
at a nearby restaurant. At the meeting, Mr. Eisen said he
had heard that Mr. Skeete had uptset Mrs. Batherson and he
would not allow that to happen. Accordingly, Mr. Skeete was
to be relieved ot supervisory responsibilities and would just
operate the machine. Mrs. Batherson was to be the new
supervisor of the office. Mr. Eisen would not allow Mr.
Skeete to tell his side of the story. From that time onward,
there seemed to be increasing friction in the office, not
only between Mrs. Batherson and Mr. Skeete but between each of
them and others as well. In particular, according to Mr.
Skeete, Mrs. Batherson would demand reports that Mr. Skeete
could not possibly produce with the then state of the programs.
According to Mr. Skeete, his relations with Mr.
Eisen had always been good. After the meeting of May 25, when
Mr. Eisen had removed Mr. Skeete from his supervisory
responsibilities, Mr. Eisen remained friendly except when Mrs.
Batherson was around. At those times he would refrain from
speaking to Mr. Skeete at all. Despite these problems, Mr.
Skeete continued in his job under the supervision of Mrs.
In November 1977, Mr. Skeete reported to Mrs. Batherson,
who by then had the title of comptroller, that he had received
a better job offer and was going to resign. She was surprised
and offered to try to persuade Mr. Eisen to raise his salary
to keep him. His prospective new job was to have paid about
$20 per week more. Mrs. Batherson said she would try to get
him $40 more from Jolyn. It should be noted that Mrs.
Batherson, despite her poor relations with Mr. Skeete, did not
use the opportunity to get rid of him, but for the good of the
Company tried to persuade him to stay. Mr. Eisen himself, then
offered an extra $20 per week and said he would try to make
up a greater sum in the bonus at the end of the year. Mr.
Skeete accepted the offer and stayed on. However, he again
received a $1,000 bonus.
Mr. Eisen was away at the time the bonus was received
and apparently he was very busy over the following few months.
Mr. Skeete did not discuss his 1977 bonus until the subject
was brought up by Mrs. Batherson in April 1978, when she asked
him about it; she seemed to suggest that he deserved more.
Mr. Skeete asked if she would broach the matter with Mr. Eisen
and Mr. Goldfarb, and she agreed to do so. Some time later
she reported that the two senior officers refused to change
the amount of Mr. Skeete* s bonus and that he would have to
wait until the end of the year again.
During the winter and early spring of 1978, according
to Mr. Skeete, his relations with the senior officers of the
firm remained good. However, there was one serious incident
between himself and Mrs. May Samuel on the one side and Mrs.
Batherson on the other. The exact time of the incident was
not clearly established but it appears to have been some time
in the early spring. Mrs. Batherson came into the computing
room and asked the two to work overtime in an ill-tempered
manner. When Mrs. Samuel refused, Mrs. Batherson became
impatient, and according to Mr. Skeete she said: "When you
black people achieve things you don't want to do any extra
work... You and you will have to work overtime or else." Mr.
Skeete was sufficiently upset that he went directly to Mr.
Eisen to complain, Mr. Eisen tried to make little of the
incident, and in his own testimony had no recollection of it.
In her testimony Mrs. Samuel, who was present when
Mr. Skeete reported his version of the incident, gave a
slightly different account. She stated, "[Mrs. Batherson]...
came in the room and said, 'You and you have to work overtime
this afternoon.' And I stood there. I was astonished, you
know. I didn't know what to say and then, you know, she stood
there and after she said something about colour and I can't
recall the exact words because she murmured. She didn't say it
aloud, she murmured that part."
Mrs. Samuel also stated she believed the incident
actually occurred a year earlier. This seems highly unlikely
since at that time Mrs. Batherson was not yet supervisor
over Mr. Skeete. In cross-examination, Mrs. Samuel admitted
she was very angry over the incident at the time and could not
remember exactly what was said but repeated that Mrs. Batherson
"Said 'coloured' something, but I really didn't pay too much
attention. I was really angry... I can't remember her exact
words... She murmured, I don't want to lie." In her testimony,
Mrs. Batherson emphatically denied making any such statement
using the word black or coloured.
The testimony of Mr. Skeete and Mrs. Samuel is
consistent in suggesting that Mrs. Batherson was in an irritabl
mood and seemed rather overbearing. All three parties recall
that Mrs. Samuel refused to work overtime and the two women
agree that in a later interview between them Mrs. Batherson
said that Mrs. Samuel need not work overtime if she did not
want to do so. I think all three witnesses gave their honest
recollections of the incident which occurred almost two years
before the hearing. On balance, I am inclined to believe the
complainants, that Mrs. Batherson probably did mutter some
reference to 'coloured people' after the refusal of her demand.
It remains a serious incident but it happened some months
before the crucial events leading to the firing of the
complainants in separate incidents.
Finally, on the morning of May 15, 1978, Mr. Skeete
was called into Mrs. Batherson' s office and informed that his
hours would be cut back because of lack of work. Mr. Skeete
objected, saying that he could not see how operations could
continue at all without an operator. He then went to see Mr.
Goldfarb who claimed to know nothing of the decision and said
he would look into it. At 5 p.m. Mr. Skeete was called back
into Mrs. Batherson's office and was told he had been
dismissed with two weeks' pay in lieu of notice. When he
asked why, he claims she replied he had said "something bad"
about her, but would not disclose anything else. Mr. Skeete
collected his belongings and left.
With the exception of the two incidents of alleged
racial comments by Mrs. Batherson, the parties are in general
agreement about the facts as related above. However, in the
view of the respondent there are additional facts that place
the events in a different light. First, the respondent
acknowledges that Mr. Skeete is a competent and generally
reliable computer operator, but claims that he frequently has
problems in personal relations with fellow employees. Before
coming to Jolyn he was fired by the Canadian Institute for
the Blind after working for that organization for three years,
because of personality clashes with both his superior and a
junior programmer working under him. He sued in County Court
for wrongful dismissal and his action was dismissed. In any
event, there is no doubt that from a very early date he
complained about Mrs. Batherson to Mr. Eisen.
When in May 1977, Mrs. Batherson was effectively made
his superior, both his evidence and that of Mrs. Batherson
suggest they had disagreements on numerous occasions, that
they got along very poorly and that Mr. Skeete resented her.
In addition, he has stated that he believed she was
prejudiced against blacks. Mr. Skeete gave evidence of a
number of incidents of friction. However, with the
exception of the incidents already described, they relate to
administrative error and misunderstanding that disclose no
evidence of racial prejudice. For instance, Mr. Skeete
dwelled upon a break-down of the air conditioning system for
a period of several days, a rather serious problem for
computing equipment. Mr. Skeete interpreted the delays in
repair to be a means of making him uncomfortable, at the risk
of the computing equipment breaking down as well. In my
opinion, there was no basis for Mr. Skeete' s view.
In addition, some testimony was given, not directly
involving the complaints, suggesting that black employees
were treated less well than white employees with regard to
sick leave and maternity leave. However, none of these
incidents were more than vague hearsay, unsubstantiated
either by the parties directly affected or by documentary
evidence of the leave arrangements themselves. In my opinion,
these incidents are more easily explained by the generally
strained personal relations which seemed to persist in the
Jolyn offices and do not demonstrate discriminatory practices.
From the evidence of Mr. Lawrie Reis, who continued
as a computer consultant to Jolyn, from the evidence of Mrs.
Batherson and several other employees, it appears that the
Jolyn management perceived Mr. Skeete as an increasingly
restive and unhappy employee, who might well leave at the
first good job opportunity. But he was very important to
Jolyn, because he was the only trained computer operator
on staff. In addition, he seemed to keep a great deal of
essential information in his head instead of keeping
detailed written records. He had changed a number of
operating procedures from what they had been when he first
joined Jolyn (according to Mr. Skeete , to improve operations),
and Mr. Reis did not understand them fully. The company
feared that if Mr. Skeete left without warning, their computer
operation would come to a halt and it would be both costly
and time-consuming to unravel the puzzle and to get back to
full operations. Mr. Skeete had already stated he intended
to leave on at least one occasion, (in November 1977, some
six months earlier) and in the view of management they felt
justified in their concern.
Accordingly, in the first week in May 1978 they
hired Mrs. Evanne Hock, a computer operator with over six
years' experience on a Honeywell 58 computer. They had two
purposes in mind: Jolyn needed to start planning for
upgrading its computer facilities still further and would
need additional staff; at the same time they hoped to train
a "back-up" for Mr. Skeete, some one who could keep the
system running in the event that he should be ill or leave
In the weeks before May 15, 1978, the officers of
the firm, encouraged by Mr. Reis, whose relations with Mr.
Skeete had continued to deteriorate, became increasingly
worried about their dependence on Mr. Skeete. Mr. Reis was suf-
ficiently worried about a sudden departure by him that several
weeks before May 15, he copied many of the files stored on
the Jolyn computer and removed them from the office as a
By May 15, work had dropped off significantly at
Jolyn and a decision was made to lay off 40 to 45 employees
for an undetermined period. Mrs. Bather son informed Mr.
Skeete that he might be put on short time while sufficient
work accumulated to operate the computer. Mr. Skeete
objected to this procedure at the time and according to his
own evidence as confirmed by Mrs. Batherson said "he could
not understand how they could do without him during normal
business hours." However, the complainants introduced no
evidence to show that it was impractical to put computer
operations on reduced time along with the rest of the office
There is no reason not to accept the evidence that
the planned lay-offs and short-time arrangements were
intended to be implemented by Jolyn, that Mr. Skeete objected
strongly and complained subsequently to Mr. Goldfarb, and at
that point Mrs. Batherson made the decision to recommend
firing Mr. Skeete. She consulted with Mr. Goldfarb in person
and with Mr. Eisen by telephone. In view of Mr. Reis's fears
about the computer programs it was decided to give him two
weeks' pay in lieu of notice and have him leave at once.
Since, as we shall see, Mrs. Hock was not yet sufficiently
familiar with Jolyn' s operations to run the computer, the
dismissal of Mr. Skeete was ill-timed.
SUMMARY OF THE FACTS AND CONCLUSION
It may be that much of the conflict between Mr.
Skeete and Mrs. Batherson was her fault because she was a
difficult person to get along with. It may be that the
Jolyn office was not well run, that there was much tension
and conflict in which Mr. Skeete became enmeshed, and that
Jolyn was itself responsibile for generating the resentment
and lack of cooperation it found in him. All these things
might be relevant, if we were here concerned with a civil
action for wrongful dismissal. But in these proceedings we
are concerned only with the question of conduct contrary to
the Human Rights Code. For the purposes of allegation under
the code there seem to be three relevant incidents, all
against a background of strained relations not shown to be
related in any way to racial discrimination.
First, there is the alleged comment reported by Miss
Glenda Jackson, of Mrs. Batherson saying she would get rid of
all blacks in the office. Mrs. Samuel did not recall the use
of the word blacks. The other two witnesses, including the
witness called by counsel for the complainants, denied that
the incident had taken place. The central evidence was
hearsay, from a witness who did not appear before the
proceeding. (It seems she is no longer in Canada but there
was no certainty about her whereabouts). Thus, while Mr.
Skeete believed Mrs. Batherson had made a prejudiced statement,
neither Jolyn Jewellers nor Mrs. Batherson can be found
responsible for that belief.
Second, there is the overtime incident early in 1978.
Mrs. Batherson appears to have been in an irritable mood,
and there was tension in the computer room. After Mrs.
Samuel's refusal to work overtime, Mrs. Batherson did mutter
something about black or coloured people not wanting to
achieve. This remark must be regarded as a racial slur and a
serious incident. The question remains whether it is
sufficient evidence of prejudice in the mind of Mrs. Batherson
to play a material role in the third incident, the firing of
Mr. Skeete on May 15, 1978.
I have reviewed the evidence of all witnesses with
respect to the working environment in the Jolyn office
generally and especially from May 1977, when Mr. Skeete was
relieved of his supervisory responsibility, until May 15, 1978.
I am satisfied that there was a steady increase in tension
and deterioration in relations between Mr. Skeete on the one
hand and Mrs. Batherson and Mr. Reis on the other. I am also
satisfied that Mr. Skeete contributed to that tension himself
in that he was not a relaxed and easy-going person and has
some history of conflict with fellow workers. Whether the
fears and suspicions of the officers of Jolyn were completely
justified in relation to a claim for wrongful dismissal, I
am satisfied that they honestly believe that Mr. Skeete might
well leave them without warning. He had talked about leaving
on more than one occasion, and on his own testimony actually
nee( j e( 3 to be persuaded to remain at Jolyn in November 1977.
He had changed operating procedures and did not keep detailed
written records of the changes. Without in any way imputing
his motives in this conduct, in the atmosphere of conflict,
especially with Mr. Reis, it was not unreasonable to have
the concerns and to take the precautions that were taken.
The copying of computing information by Mr. Reis is
consistent with these fears. I believe these fears were
dominant in the minds of the officers of Jolyn and decisive
on May 15, 1978, when they fired Mr. Skeete. I do not
believe that the one incident of racial prejudice with respect
to overtime, serious though any such incident must be, played
a material role in the decision to fire Mr. Skeete.
If there were any evidence that Jolyn had a history
of employing very few people from racial minorities - if there
were any previous incidents of discrimination at Jolyn - it
might be necessary to take a more serious view of the one
incident. But the evidence shows that Jolyn has employed a
very high percentage of immigrant workers from many parts of
the world of various colour and racial origin. Even
discounting evidence of present employees because of loyalty
to the firm or fear of reprisal, a number of employees
expressed in very positive terms their conviction that the
firm did not practise any form of discrimination and indeed
condemned it. In these circumstances, one racial remark in
much broader and more pervasive context of stressful relations
confirmed by both parties, does not appear material. Of
course, it is impossible to peer into the subconscious of a
person's mind, but when all the external indicia of the
evidence before the hearing are weighed, I do not find it
possible to conclude that one incident can condemn Mrs.
Batherson. Indeed, if the effect of one such incident were
to taint the firing with racial discrimination in this case,
it would seem virtually impossible ever to let Mr. Skeete
go without such condemnation following almost inevitably.
It does not seem to me that our Human Rights Code, either in
letter or spirit exacts such a high standard from one fault.
The leading case on this subject appears to be
Regina v. Bushnell Communications Ltd., et al. (1974) 4 O.R.
(2d) 288. In that case the accused corporation was charged
under s. 110(3) of the Canada Labour Code, R.S.C. 1970,
c. L-l, making it an offence to "refuse... to continue to
employ any person .. .because the person is a member of a trade
union" . There was evidence of acrimony and disagreement
among a number of employees and especially with the
subsequently dismissed employee, whose dismissal led to the
charge being laid. Indeed it would not have been surprising
had the company decided to dismiss him at some point.
However, the day before the dismissal, a letter was delivered
by a union representative to the executive vice-president
of the company, advising him that the employee was a member
of the union. In other words, the notification of union
membership was followed the next day by dismissal. The court
of appeal, in upholding the conviction of the employer
stated (at p. 290), "...union membership must be a proximate
cause for dismissal, but it may be present with other proximate
causes." [Underlining, mine.] I construe these words to mean
that union membership must have played a material role,
though not the sole or even dominant role in the decision to
dismiss. Given the sequence of events in the Bushnell case
it is not all surprising that union membership was so viewed
by the court.
Another way of stating the test might be to ask,
"Would the employee have been dismissed at that time, had the
impugned proximate cause not been present?" In the Bushnell
case, it is hard to imagine the dismissal occurring just by
coincidence the day after notice was received of the employee's
membership in the union.
The same questions asked in the present case would be,
"Was Mr. Skeete's race or colour a proximate cause in his
dismissal?" and, "Would Mr. Skeete have been dismissed at that
time, had he been a white employee?" In my view, the answer
to the first question is "no", that Mr. Skeete's colour was
not a proximate cause. Rather, it was strained personal
relations unrelated to race and to which both employee and
employer had contributed, expressed resentment and puzzling
conduct in the operating procedures of the computer by Mr.
Skeete and genuine fear, whether justified or not, on the part
of the employer that he might leave the company "in the lurch",
brought to a head by the confrontation of May 15, that led to
the dismissal. It follows that Mr. Skeete, would very likely
have been dismissed if he had been a white person in the same
circumstances and on the same occasion. I do no believe that
Mr. Skeete being a black man played any role in the decision
) Accordingly, I do not find that Jolyn Jewellery
Limited, or Mrs. Barbara Batherson violated section 4,
subsection 1(b) and (g) of the Ontario Human Rights Code
in dismissing Mr. Randolph Skeete.
THE FACTS IN MRS ♦ SAMUEL'S COMPLAINT
Mrs. Samuel is 35 years old, born in Jamaica where
she received her training as a key punch operator and came
to Canada in 1968. She is married and has two children.
Before coming to Jolyn she worked as an operator at the
Ontario Ministry of Health and for a firm known as Staff
Builders Employment Agency. In August 1976, she was hired
by Mr. Skeete while he was supervisor of computer operations.
Mrs. Samuel was considered a reliable, experienced key punch
operator by Mr. Skeete as well as by his superiors. She seems
to have got along well with everyone including Mr. Skeete.
Before her last few days at Jolyn, there was only one reported
incident involving Mrs. Samuel in which there was any friction -
the incident in which Mrs. Batherson requested that Mr. Skeete
and Mrs. Samuel work overtime, as described in detail in the
facts of Mr. Skeete' s complaint. The crucial part of the events
concerning Mrs. Samuel occurred just after Mr. Skeete 's
After Mr. Skeete was dismissed, May 15, 1978, Mrs.
Samuel found that her workload became very heavy. According to
Mrs. Samuel, Mrs. Hock, who had been hired as a "back-up"
operator for Mr. Skeete, was unable to run the computer. Mrs.
Hock had been with Jolyn less than two weeks. Although she
was an experienced operator on a Honeywell 58, Mrs. Hock stated
that it would take some time to become familiar with the
programs and procedures. She said that she first needed to
become familiar both with Jolyn's business and with how the
computer is used to assist the business. In particular,
Mrs. Hock - whose evidence was supported by that of Mr. Reis,
the computer consultant who had originally recommended hiring
Mr. Skeete - claimed that there was very little documentation
about Jolyn computer operations available to her. Mr. Skeete
seems to have kept much of the day-to-day information in his
head. Mrs. Hock stated it was essential to have the
documentation and to have a deck of key-punched cards called
"execute cards", to run the computer successfully. I shall
return to the question of the cards, but for the moment, it is
important to note that in Mrs. Samuel's view, Mrs. Hock
seemed not to know how to operate the computer. Mrs. Samuel,
being a competent key punch operator who had helped Mr. Skeete
with computer operations from time to time, had also learned
a good deal about operating the computer itself during her more
than two years at Jolyn. She knew how to start up the
computer and did so the morning of May 16, after Mr. Skeete
had been dismissed. To her it seemed that Mrs. Hock was
rather helpless and ill-prepared. For the next few days she
performed a number of computer operations and did her key
punching as well. She was aware that Mr. Skeete had been
dismissed because he had told her about it by telephone the
evening he had lost his job. According to both Mrs. Hock and
Mrs. Batherson, Mrs. Samuel worked very hard and was
particularly helpful in the days following Mr. Skeete' s
Mrs. Hock stated that she had great difficulty
getting the computer to operate because on the morning after
Mr. Skeete was dismissed, although she found a fairly large
number of cards, they were in disarray - all out of order -
in a tray by the computer. She could not make any sense of
them. At that point, Mrs. Samuel volunteered the information
that she had a set of execute cards at home and would bring
them to work the next day .
There is substantial disagreement among the witnesses
about the number and significance of this set of execute cards
that were in Mrs. Samuel's possession at her home when Mr. Skeete
was dismissed. At a date that was not established by either side,
Mrs. Samuel had keypunched a set of cards related to computer
operations. Mrs. Samuel said she produced these cards on Mr.
Skeete *s instructions, about thirty or so of them, that could be
used if the computer "goes down in the middle of an invoice run".
She took these cards home with her, for reasons that were never
explained and there is no doubt that taking them home was a
very unusual thing to do. These cards were the property of
Jolyn and related to the computer operations of Jolyn. They were
not the personal property of Mrs. Samuel although it seems that
she believed them to be of value only to herself.
According to Mrs. Hock, Mrs. Samuel brought in a carton
of 300 or so cards, not thirty. Largely through the efforts of
Mrs. Samuel who was familiar with the cards, the computer
was started up and operated over the next few days. Mrs. Hock,
with the assistance of Mr. Reis, sorted the cards
which were already in reasonably good order, and placed them
in appropriate plastic pouches in a large binder specially
designed for key punch cards. From there they could be
removed in appropriate groups and used in the computer
operations. Mrs. Hock stated that these cards were used in
most of the regular day-to-day operations of the computer.
Mr. Reis's testimony is in general agreement on this point,
although he did not say, nor was he asked by counsel, how
many cards there were.
We therefore have Mrs. Samuel's evidence asserting
that there were very few execute cards for the limited purpose
of restarting the computer when it "goes down". Mrs. Hock,
on the other hand claims that Mrs. Samuel brought some 300
cards to the office, cards which could be used for many or
most of the daily procedures. Mrs. Samuel must be mistaken to
some extent, because it does not seem consistent that the cards
would have been the subject of discussion and a substantial
benefit in the computer operations if there were only thirty
of them for the limited purposes described by her. We are also
left with the unanswered question of why she took the cards
home (where they could serve no useful purpose) rather than
leave them in the office near her desk or key-punch machine.
The only reasonable explanation seems to be for safekeeping
because of some concern for their disappearance if they were
left at work. Even if Mrs. Samuel's perception of the cards
was that they were of little value, she nevertheless
volunteered the information that she had them at home and did
bring them into the office the following day, surely in the
belief that they would be of some assistance. It also seems
clear that Mrs. Hock and Mr. Reis believed that the cards
were important in keeping the computer running . The
approximate number of cards is of less consequence than the
clear evidence that they were a significant help in running
the computer .
The events appear to have occurred as follows: Mr.
Skeete was dismissed Monday afternoon, May 15, 1978. Tuesday
morning, Mrs. Hock was asked to operate the computer and found
the execute cards in disarray and was unable to work with them.
Mrs. Samuel then stated she had some cards at home and brought
them to the office Wednesday morning, May 17. She did much
of the work needed to keep the computer operating, as well as
any needed key punching that day and on Thursday, May 18.
Sometime Friday morning, May 19, Mrs. Samuel received
a telephone call from an anonymous person, a woman who,
according to Mrs. Samuel, said, "You are so stupid there. They
are using you. Imagine, they are paying Evanna [Hock] $250
and you have to show her everything and you are doing all the
work." Mrs. Samuel asked who the caller was, but the caller
refused to identify herself. The telephone call greatly upset
Mrs. Samuel who earned $210 per week. A little later she
confronted Mrs. Hock and asked her whether it was true that
Mrs. Hock was earning $250. Mrs. Hock denies disclosing what
amount she earned while Mrs. Samuel claims that Mrs. Hock
confirmed the figure. However, Mrs. Hock's reaction must
have confirmed to Mrs. Samuel's that her belief was correct.
A striking example of conflicting evidence on this matter
occurred in the earlier testimony of Mr. Skeete. When
asked by his counsel whether he had any knowledge of Mrs.
Hock's salary, he replied, "I overheard her telling Mrs.
May Samuel she was making $250 a week." Yet it is clear
that Mrs. Samuel did not know Mrs. Hock's salary until the
anonymous telephone call received after Mr. Skeete was
dismissed. Both Mrs. Hock and Mrs. Batherson confirm Mrs.
Samuel's reaction on Friday, May 19. Without in any way
questioning the integrity of the witness, I think this
contradiction between the evidence of Mr. Skeete and Mrs.
Samuel, both complainant's in this hearing, emphasizes, despite
the fallibility of memory after such a long time, how easy it
is for parties to delude themselves that they have remembered
events with apparent accuracy, later proved to be false.
Mrs. Samuel went to Mrs. Batherson' s office about
3:00 p.m. to complain that she was training Mrs. Hock but
earning less money. She thought it was unfair and she was
very upset about it. Mrs. Batherson at first, refused to
discuss Mrs. Hock's salary saying it was a matter between
Mrs. Hock and the company, but eventually she tried to
re-assure Mrs. Samuel, saying that she herself could not
grant a $40 increase in salary but that she would speak to Mr.
Eisen about getting an increase of perhaps $25. She suggested
that Mrs. Samuel talk the matter over with her husband on the
long week-end and would feel better on the following Tuesday.
Both parties are in general agreement about this conversation.
However, at that point it appears that Mrs. Samuel made up
her mind that regardless of the pay issue the task of helping
run the computer and acting as key-punch operator was too
demanding and stressful. She decided in her own mind that
she would be content to remain as just a key-punch operator
and would refuse to help with the computer operation. Before
leaving work at the end of the day she went to the binder
containing the execute cards, removed the ones she had brought
from home and threw them into a garbage bin. No one else in
the office was aware that Mrs. Samuel had done this.
On the following Tuesday morning when Mrs. Hock went
to the binder she saw at once that a number of the cards v/ere
missing. According to Mrs. Hock, about half the cards were
missing, while Mrs. Samuel claims that only the thirty cards
she had brought back to Jolyn were missing. At that point,
Mrs. Samuel spoke up and said there was no point in looking
for the cards because she had taken them and was not qoing to
return them. Mrs. Samuel's evidence does not contradict Mrs.
Hock on this point, and it is a very important point. For
if the cards taken by Mrs. Samuel the preceding Friday had
only been a small group of back-up cards in case the computer
should go down - a group of cards in the back of the binder
as Mrs. Samuel had described them - then Mrs. Hock would not
have noticed immediately that they were missing and there
would have been no reason for Mrs. Samuel to volunteer the
information that she had taken the missing cards. In my
opinion, the missing cards must have been of greater importance
not only in Mrs. Hock's mind but also in Mrs. Samuel's mind at
the time, or Mrs. Samuel would not have volunteered the
information. While I have no doubt that Mrs. Samuel is an
honest witness, on balance it seems much more likely that
Mrs. Hock's version of what happened - that a number of
important execute cards (whether more or less than half is
not significant), were missing - is more accurate than Mrs.
Mrs. Samuel did not disclose that she had thrown
the cards away. Mrs. Hock then went to Mrs. Batherson's
office to tell her what had happened. According to both
Mrs. Hock and Mrs. Bather son, the latter then approached Mrs.
Samuel to try to persuade her to return the cards, but Mrs.
Samuel refused. Mrs. Samuel does not believe that she spoke
to Mrs. Batherson on the Tuesday, but it is probable that
some such conversation took place. In any event, without
the cards, and with Mrs. Samuel refusing to do any work other
than key-punching, computer operations were severely curtailed
for the day. Mr. Goldfarb, the vice-president of the company
at the time, was out of town, and Mrs. Batherson delayed
taking any action before his return the following day,
Wednesday, May 24.
Wednesday morning, when Mr. Goldfarb had returned to
the office, Mrs. Samuel was called to a meeting with him and
Mrs. Batherson. This meeting was reviewed extensively in
examination-in-chief and cross-examination of both Mrs. Samuel
and Mrs. Batherson, and there is general agreement about what
occurred until the last few moments of the meeting. Mrs.
Samuel was asked why she had taken the cards and she stated
she believed they were her own property, and of no value to
the company. When Mr. Goldfarb insisted that they were
company property, she then disclosed that she no longer had
the cards but had thrown them away. It appears that Mr.
Goldfarb, Mrs. Batherson and Mrs. Samuel became increasingly
angry and hostile from that point onward. Whether Mr.
Goldfarb or Mrs. Batherson first suggested calling the police
is not certain, but at the end of the conversation it was
made clear to Mrs. Samuel that the police were going to be
called to report that she had either stolen or destroyed
company property .
Mr. Goldfarb did not appear as a witness, but Mrs.
Batherson stated that when he said he would call the police,
"[Mrs. Samuel] ... got upset and she stormed out of his office."
In cross-examination, Mrs. Batherson added, "She left his
office shouting all the way, and I heard a commotion in the
office..." However, Mrs. Samuel's version of the end of the
meeting is quite different. She stated that when Mr. Goldfarb
indicated that the police would be called, she said, "Very
well, I am going to call the Department of Labour . " At that
point she left the office. When asked by her counsel, "Were
you swearing or raising your voice or making any noise at this
time?" she responded, "I was just murmuring to myself..."
To the question, "Were you raising your voice?" she replied,
"Not to the extreme." And to, "Were you speaking softly?"
she said, "Not very softly, no, you could have heard... Some of
them [the people in the office] could have heard. Like for
instance the receptionist ... but not everybody." Mrs. Samuel
rather reluctantly recalled that she was not entirely calm and
composed on leaving Mr. Goldfarb' s office.
Mrs. Hock gave evidence similar to that of Mrs.
Batherson, to the effect that Mrs. Samuel on coming out, or
shortly after coming out, of Mr. Goldfarb's office, was
shouting abuse and calling Mrs. Batherson names as she
approached the computer room. Mrs. Betty Reid, who was cross-
examined extensively by counsel for the Commission, also heard
Mrs. Samuel come from Mr. Goldfarb's office shouting abuse at
Mrs. Batherson. Mrs. Joan Wiederhold, whose desk was next, to
that of Mrs. Reid (both of whom could see Mrs. Samuel within
a few feet of her leaving Mr. Goldfarb's office) testified to
the same effect.
There is no doubt that Mrs. Samuel and Mrs. Batherson
were both very upset at the time, and either could have got the
sequence of events confused. However, three witnesses
corroborate Mrs. Batherson' s statement that Mrs. Samuel "stormed
out of the office", and I find that this version is on balance
the more likely one.
At that point, Mrs. Samuel fetched her purse from the
computer room and went to Mrs. Wiederhold' s desk to telephone
the Human Rights Commission. There was some uncertainty about
the order of events, but the above sequence seems probable.
After making her telephone call Mrs. Samuel left her Jolyn
"I.D." card with Mrs. Wiederhold. It is also agreed that
right after the telephone call, whether before or after
depositing the "I.D." card is not established, Mrs. Samuel
began to shout again and left the building. Mrs. Samuel states
that the reason she started to shout was that Mrs. Batherson
passed by closely and made a remark about coloured people. In
Mrs. Samuel's words, "When she passed and she passed very
close to me and she said, 'You coloured people', something
as she was walking, so I didn't catch the second part of
it and I said 'You stupid bitch, what did you say?', because
I was really angry and I shouted it. Everybody in the
office could hear. I was really angry."
Mrs. Batherson denied coming out of Mr. Goldfarb's
office until Mrs. Samuel had left the building, and stated
that she had no further contact with Mrs. Samuel until the
latter telephoned some time later from the offices of the
Human Rights Commission. Mrs. Hock stated that Mrs.
Batherson was not in the office when Mrs. Samuel was shouting
either before or after the telephone call. Under intensive
cross-examination, both Mrs. Reid and Mrs. Wiederhold stated
that Mrs. Batherson did not pass by Mrs. Samuel immediately
after she made her telephone call to the Human Rights
Commission. There was some uncertainty in both witnesses
about the details, because they both said they were very
embarrassed by the shouting and profanity and tried to avert
their eyes. They acknowledged that details of these events
were distant and they did not recollect them exactly.
Nevertheless, so soon after Mrs. Samuel had shouted abuse
at Mrs. Batherson, it would be remarkable that her personal
appearance in the office, close to Mrs. Samuel, would go
entirely unnoticed by all three of these witnesses. Mrs.
Samuel herself only recollects the words "you coloured people"
and stated that she did not hear the context in which the
words may have been used - if indeed they were used at all.
She readily admitted she was very angry and upset at the
time. In my opinion, the weight of evidence does not
establish that Mrs. Batherson did pass by Mrs. Samuel
immediately after the telephone call.
It should be noted that the words "you coloured
people" are not in themselves perjorative but must take
their meaning from the context. Thus, even if they were
used it is possible that they were part of a defensive
or worried statement, after the telephone call made to the
Human Rights Commission, such as "We treat you coloured
people the same as everyone else," or "I have nothing
against you coloured people." There is no evidence by the
complainant that puts these words in a perjorative or
discriminatory context, and I believe it would be unwarranted
to make such an inference in the circumstances. In any
event, on this confused and rather slender evidence it does
not appear justified to find that a racial slur against Mrs.
Samuel was uttered by Mrs. Batherson, though no doubt Mrs.
Samuel believes it was made. I find that Mrs. Batherson did
not make such a remark.
Mrs. Samuel left Jolyn at 10:00 a.m. and went to the
offices of the Human Rights Commission, where she found that
she would have to wait for an interview. About noon, she
telephoned Mrs. Batherson to say she would be late in returning,
apparently believing she still had her job. Mrs. Batherson
stated that Mrs. Samuel herself raised the question of whether
she still had a job, suggesting there was doubt in Mrs. Samuel's
own mind. Although little turns on which is the more accurate
recollection of the event, it does seem rather unrealistic
for Mrs. Samuel, after the accusation of theft and order to
call the police, the violent shouting in the office and
leaving without consent of the employer, to assume that she
still had a job awaiting her at Jolyn. Mrs. Batherson' s
version of the telephone call appears more accurate than that
of Mrs. Samuel. It would seem reasonable, after all that
occurred, to ask about one's status at work. Both agree that
Mrs. Batherson then informed Mrs. Samuel that she was
dismissed, and they discussed arrangements for her to pick up
her cheque for any wages owing. The reason given for the
dismissal was "mischief", that is, the destruction of company
property in the form of the execute cards. Mrs. Samuel was
subsequently charged with a criminal offence, but the charge
SUMMARY OF THE FACTS AND CONCLUSION
Mrs. Samuel is a competent and diligent key punch
operator, highly regarded by the senior officers at Jolyn.
She did have one serious disagreement with Mrs. Batherson at
the time of the overtime incident involving as well Mr. Skeete.
This incident took place two or three months before the events
of late May 1978 and no doubt left some background of
suspicion and hostility towards Mrs. Batherson because of her
reference to coloured people and her perceived overbearing
manner at that time. There was also a state of continuing
stress and friction in the office between Mr. Skeete and Mrs.
Batherson possibly involving others as well. Nevertheless,
Mrs. Samuel was very willing to be helpful when the company
needed her services after Mr. Skeete was dismissed.
After Mr. Skeete' s departure, Mrs. Samuel found
herself under much increased pressure with Mrs. Hock's
dependence upon her in running the computer. There is no
doubt that the mysterious telephone call from an unknown
person was the catalyst that precipitated the unfortunate
events which followed. Whoever may have instigated the
telephone call, there is not the slightest indication that any
officer of Jolyn was implicated. Indeed, in the circumstances
after Mr. Skeete leaving, Jolyn badly needed Mrs. Samuel's
continued help and had no reason to precipitate a crisis.
Although one may sympathize with Mrs. Samuel's viewpoint that
Mrs. Hock could not handle the job and her bitterness at being
paid less, Mrs. Samuel's perception did not justify her
destroying company property. Even so, Mrs. Batherson
hesitated to dismiss her after learning that Mrs. Samuel had
taken the cards, perhaps in the hope of recovering the execute
cards and in the hope of restoring relations with a needed
employee. However, it is hardly surprising that the company
after learning that the cards had been destroyed and after
Mrs. Samuel's outburst of shouting and abuse, and finally
leaving the premises to file a complaint against it, chose to
dismiss her for cause. Whether the company was justified in
dismissing for cause in law, is not the issue before us. The
only issue is whether the company's officers thought they
were dismissing Mrs. Samuel because of her conduct without
regard to her race or colour.
I have found one piece of evidence, the overtime
incident some months before, where a racial remark was very
likely made by Mrs. Batherson. The only other allegation
of a racial remark, was that made after the events had
occurred which led to Mrs. Samuel's dismissal. Even if Mrs.
Samuel's evidence of this second remark were accepted,
substantial doubt would remain whether prejudicial views
played any material role in the decision to dismiss. As it
is, I have found on the evidence that Mrs. Batherson did not
make a second remark about coloured people, and even on Mrs.
Samuel's own/there is no evidence of the words used in a
perjorative sense. Thus, while there is evidence of very
strained personal relations there is no evidence to establish
discriminatory conduct by Mrs. Batherson. On the other hand,
there is strong evidence that Mrs. Samuel was the author of
her own dismissal, albeit as the consequence of a nefarious
and anonymous telephone call that occurred during
particularly stressful working conditions.
Referring again to the Bushnell case, I do not find
that Mrs. Samuel's colour was a proximate cause in her
dismissal. There is no basis to doubt that a white employee
who had thrown away a number of execute cards in similar
circumstances, who shouted abuse of a member of management
and left the premises of the employer to lay a complaint,
would not also have been dismissed. Accordingly, I do not
find that Jolyn Jewellery Limited violated section 4,
subsection 1(b) and (g) of the Ontario Human Rights Code when
it dismissed Mrs. Samuel.
In accordance with section 14c of the Ontario
Human Rights Code I have decided that neither respondent
has contravened the Code.
Dated at xKingston, Ontario, this 23rd day of
Board of Inquiry